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Fear and Licensing in Las Library

In reading about the Netflix/library hubbub[1], the issue in my mind is not how Netflix was used. I believe that the actions of these libraries and librarians are a symptom of a larger issue for the profession: the coping (or non-coping) with the expansion of licensed content as part of the collection.

This run-in with Netflix is just the tip of the iceberg that is slowly bearing down on the libraryland ship. We are moving from a collection model where we would purchase and lend materials to where we act as an access point for leased or licensed content. The relatively safe model protected under the first sale doctrine is being eroded and replaced with agreements where ownership rights stay with with the provider. In forgoing ownership, libraries must abide by a series of contractual rules and terms that have been created by an outside entity. As the number of vendors offering these kinds of business increases, librarians are obliged to enforce a variety of contractual clauses, terms, and conditions.

Libraries are surrendering content ownership at an alarming rate in exchange for convenience. In doing so, the library moves toward a future where the collection is no longer owned and maintained but leased and licensed by entities that operate in the best interest of their shareholders, not the patron community. It’s a future in which final determination of access is taken out of the hands of librarians and placed into that of outside third parties.

If this doesn’t bother you, it should.

So what can be done? Just as business models regarding digital content are being shaped in the marketplace right now, the library has a role in what that model will look like. Libraries are no longer act as a receptacle at the end of the information production line; they are now active and involved in content creation. In addition, we retain a very important business model chip: money. As it becomes a rarer commodity due to budget cuts, it becomes a more valuable one in terms of buying power.

So, this begs the question: why aren’t companies like Netflix, Amazon, Apple, or Sony working with libraries? (Redbox does; Starbucks does; I am eager to find other examples but I wanted to post this sooner.) I have a couple of answers in mind, but the one that strike me as being the best is this: companies don’t want to give up any level of control of their content. In creating terms for libraries to use their content, they would have to cede some level of control to us in order to make their product available to our patrons. With the current bevy of EULAs, TOSs, and other agreements that allow them to retain absolute ownership, there is no reason to make a any sort of accomodation or deal with libraries.

(Still not convinced? Check out the quote in the ReadWriteWeb article from Steve Swasey, Netflix’ vice president of corporate communications:

Netflix "frowns upon" this type of use, said Steve Swasey, Netflix’ vice president of corporate communications, but indicated no plans to enforce the rules. "We just don’t want to be pursuing libraries," he said. "We appreciate libraries and we value them, but we expect that they follow the terms of agreement."

“Appreciate” and “value” sound like the words used before that boy or girl you have a crush on in high school tells you that they just want to be friends. They won’t sue libraries for misusing their service, but they sure aren’t lining up to come up with something that is a better deal for both parties[2]. And that’s a problem that libraries need to address and quickly. Libraries risk losing out on the next generation of content management and the ability to write their own destinies when it comes to collection development. We need to renew our efforts to take control of our content as well as to work with businesses in creating new opportunities and ventures.

[2] Here’s an idea off the top of my head: Netflix creates a site license for libraries, up the number of DVDs that can be borrowed from Netflix by a library, and give Netflix a share of overdue fines collected from their DVDs. Libraries move less well known movies off of the shelves of Netflix, Netflix gets nearly free advertising as a service within libraries (“we don’t have it, but we’ll Netflix your request”), patrons get movies, libraries share overdue fees with Netflix, everyone wins. (Yes, I know I just railed against licensing and not owning content, but since Netflix is in the business of lending and not retailing, I think this better fits their current business model.)

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17 thoughts on “Fear and Licensing in Las Library”

First let me say that I enjoyed this post, and it’s reasoned arguments. Right up until the end.

Why pick on Netflix?? Netflix has no obligation whatsoever to deal with libraries, they’re a consumer business. Libraries would do better to take on the licensing vs. ownership issues with library-centered businesses. Let’s take on licensing, selection, and access with EBSCO, Cengage, Proquest, and all the ebook vendors who will only license us packages, and only where they control the content.

Netflix is not in the business of working with libraries, any more than Blockbuster or PeaPod. There’s no excuse in the world for libraries to violate Netflix’s licensing; we have many other options for obtaining the material (purchasing and reciprocal borrowing just to name 2). The big aggregators not only license us materials and maintain exclusive control over their packages, they also are often the only way for libraries to obtain that content digitally.

As a sidebar, I;d also love to see this conversation move into the relationships between how copyright has traditionally managed these transactions and how they are now governed by widely varying corporate interests in the form of TOSes and EULAs. Is there a new role for federal intervention or oversight here?

Let’s put our energy into fighting the fight in our own backyard before we go peeking over fences looking for trouble.

I can see where the argument goes both ways: either with just concentrating on library vendors or businesses in general. I think in looking towards other businesses, libraries can find other opportunities that put competitive pressure on existing library vendor relationships. But you’re right in that we should be giving greater examination to what we have already.

First off, Andy, THANK YOU. I don’t know what the issue is (see below) but you are the blogger I count on to cut the BS and you have done it again. You have amazing ideas!! Keep writing!! (You are continuing daily to earn that thing you got from Library Journal)

(I am missing a few words this morning from lack of coffee, can’t remember what the LJ thing is, but you know what I mean, Rocking Librarian.)

missed the Redbox link. And I’m not sure I get what provoked this. Are some libraries using Netflix? Cuz as you later mentioned, that would be an amazing trick…and probably more cost-effective for movies than ILL. I have a patron who is obsessed (and I mean obsessed) with all types of older movies and I hate it when our system (large) doesn’t have what he’s looking for and knowing that sending it out to ILL probably will NOT net a result (oh, net, netflix) (ha)

Oh, i see now you have links. A sentence saying “this is the hubbub, here are my sources would have been great” as I am clueless and while I normally LURVE (I do) going to links, I have no time today.

The writeup on Redbox is really nice since it shows a good balance for the business and the library. People have an option if they really really want it while the library collects a rather modest fee. It reduces pressure on the library to carry more copies when it knows people will opt for an alternative route.

Excellent post, Andy. One quick question: where’s the incentive for Netflix to do this. I understand that they are getting attention, but what would prompt the patrons to pursue their own account if they could just use the library? I’m also leery if Netflix could handle the volume, which I assume would increase on a massive scale.

The incentive I see is bringing things back to “kosher”. By working with libraries, Netflix can assure the studios that their rights are being preserved while reaching a new market for their services. In addition, I think it’s just plan good PR. These are modest reasons, I know, but this is a company that has no hard rule on time off from work. You take as much time as you want. What matters is accountability. I would hope that with such a loose corporate policy that they would be willing to entertain a different sort of venture.

My thinking has gone along very similar lines to yours, and I am bothered.

But — and here’s a big But — I am a librarian. And a librarian is a minor player in the complicated ecosystem of content creation and dissemination right now.

I haven’t verified this, but I highly doubt that anyone consulted librarians when bound books replaced papyrus scrolls commercially, and unfortunately (?) librarians tend to be in the position of reacting to changes instead of influencing the marketplace that’s creating those changes. I’m afraid our squeaks of concern are drowned in the larger roar.

I think there is always a point where you are either leading or catching up. We are a patron driven business and it relies on people to throw us a bone as to what is working or not working. This isn’t very clear, but neither is trying to lead and having no one follow you.

I think we are going to see more and more of this as time presses on. Libraries are already challenging TOS with Netflix, lending e-readers, and in other ways. Sometimes by challenging that, things can change.

It would be interesting to see if the content providers will crack down on Netflix to crack down on libraries. Some distributors have already cracked down on Netflix and created a 30 day window between the dvd release and when Netflix can release.

I think we are just simply lucky that one of our commonly attributed qualities or stereotypes or however you want to put it is one in which people do not want to be seen picking on. No one wants to be suing libraries or librarians on these sorts of grounds, which (to me) means that there is operational room to affect change. Even with a very good motivation (profit), people do not want to be seen suing libraries who are trying to do the right thing by their mission.

For some of us, the iceberg that you say is “slowly bearing down” has long since passed. In my academic medical library (http://www.uab.edu/lister) we’ve purchased almost no physical items in the last few years. We no longer use the term “collection development;” we talk about “content management.” I hasten to add that every sector will move through this differently — in biomedicine, virtually all content is now digital. For academic libraries supporting humanities & social sciences, and certainly for public libraries, the “collection model” that you describe still has some relevance — but for us, it doesn’t. We’re learning to think differently.

More to your point, the answer to why companies aren’t sufficiently engaged with librarians is that we’re not being at all proactive about engaging with them. And that’s the case whether we’re talking about consumer oriented businesses or library oriented businesses. Most librarians perceive vendors and publishers as “the enemy”, whine about prices & contract terms, but don’t actually know anybody in the publishing or content development business except the sales reps. So they don’t understand business models, strategic plans & priorities, or almost any of the other issues that lead companies to develop the policies and procedures that they do.

I’ve spent much of my time in the last ten years (when I’m not busy running my library) spending time with people in publishing — going to their meetings, reading what they read, and trying to understand things from their perspective. This certainly does NOT mean that I agree with my colleagues in publishing on every issue (or even on many issues) but I do see them as colleagues, and I do think it is important to understand their points of view.

I’ve been a couple of times (as an invited speaker) to the annual meeting of the International STM Association in Frankfurt and one of the things that has been so striking to me in my hallway and barroom conversations with those folks is how eager they would be to engage with librarians and to have librarians involved in helping to set directions for the future. But they’re not waiting around for librarians to show up — they’ve got organizations that they’re trying to keep alive through this transition and they’re a lot more worried about their survival than librarians are.

This is one of the reasons that I pushed hard for the creation of the Chicago Collaborative (http://www.chicago-collaborative.org) an initiative designed to provide an arena for librarians, publishers and editors to work together on the grand challenges that face us as we move from a primarily print to a primarily digital world. It’s the reason that I worked as hard as I did with the Scholarly Communication Roundtable whose report stresses the need for engagement of ALL stakeholders in developing policies for public access to the results of federally funded research. It’s the reason that I’m involved with the Society for Scholarly Publishing as well as with my library organizations.

Publishers, content developers, and intermediary companies of all stripes are generally willing to work with librarians, but librarians are going to have to step up, spend time building relationships and collaborations, and recognize that we are all in this together. It’s not easy and it takes time, but it’s the only way we are going to build a digital future that meets all of our interrelated interests.

I do think it’s unfair to consider vendors to be ‘the enemy’. It feels more of a reflection of a bad relationship than necessarily a bad partnership of goods and services. And if you really think you’re getting the short end of the stick constantly, then maybe you need to see if you’re getting the best deal before you set your mind to it.

At any rate, I agree with the engagement question. I don’t think there is a much reaching out and (if I was going to guess) it’s that people don’t assign a value to that sort of research and relationship building. They want the tangible things such as what is in their library right now and what is coming; beyond that, it is not an immediate concern (when it damn well should be). You’re absolutely right to say that librarians need to invest the time; but I can hear the “I don’t have the time for this” excuse humming through the air to intercept this point. How do we counter that notion?

This post is interesting, but elides a critically important question: how many librarians were required to take a copyright class and a licensing class as a condition of completing their MLS degrees?

Here’s another: How many MLS programs regularly offer either copyright or licensing classes as part of their curriculum?

And a third: why doesn’t the ALA require (at least) copyright law as part of every accredited MLS curriculum?

These are questions I’ve raised occasionally across four years as an Information Today columnist. I’ve yet to get a response.

Licensing sets the ground rules for the 21st century use of digital information; it is based upon uses of one or more of the exclusive rights under Section 106 of the Copyright Act of 1976. Failure to understand copyright (and licensing, to a nearly equal degree) within the context of the contemporary digital information environment means many librarians have absolutely no clue about how to deal with information use or collection issues. This affects virtually every part of a library’s information or service chain: materials review, purchase, lending, interlibrary loan, electronic reserves, open access … The list literally could go on.

There is a line in the film Rounders in which Matt Damon’s character says “If you can’t spot the sucker at the table within 20 minutes, then you are the sucker.” If librarians — so-called information *professionals* — can’t identify the business, legal and policy issues that are at work because of a lack of understanding, or misunderstanding, of copyright, then we’re the suckers at the table. And we’ll continued to get our pockets emptied.

The short version is that my grad school (Clarion) covered copyright insofar as fair use and some of the broader issue around the act. We didn’t delve into it, but I don’t know how we compare to other programs. It was not otherwise part of the program.

It’s the next battlefield for certain, Matthew. Some intelligence work on our behalf should be warranted.

Having just graduated (Rutgers) I can say there wasn’t a class that dealt primarily with copyright and licensing though I wish there would have been one. The issue was covered in different classes in regards to what was being taught.